?BfEATTQ 

OFTEXAS 

The Honorable Charles R. Barden, P. E. 

Executive Secretary 

Texas Air Control Board 

820 East 53rd Street 

Austin, Texas 78751 

Dear Mr. Barden: 

Opinion No. H- 177 

Re: Point at which samples 

are to be taken to 

determine emission of 

hydrogen sulfide 

Your opinion request~asks the following question: 

“For purposes of property line sampling in accordance 

with the Rules and Regualtions of the Texas Air Control 

Board, if an oil company owns the oil and gas leasehold 

rights for a certain tract of land, is that entire tract 

under common control or ownership of the oil company? 

Or, in the alternative, is only the land actually being 

used for oil and gas production at a particular point in 

time under the control or ownership of the company?” 

The Texas Clean Air Act (Article 4477-5, Vernon’s Texas Civil 

Statutes) establishes that The Texas Air Control Board’is to administer its 

provisions. (Article 4477-5, V. T. C. S., Subchapters B and C). 

Section 3.09(a) of the Act gives the Board authority to make rules 

and regulations consistent with the intent and purposes of the Act and to 

amend them. It is provided in $ 3.09(b): 

“Before adopting any rules and regulations, or any 

amendments or repeal thereof, the board shall hold a 

public hearing. If the rule~or regulation, or amendment 

or repeal thereof, will have a state-wide effect, notice . . . 

of the hearing shall be published one time at least 20 days: 

p. 808 
The Honorable Charles R. Barden, page 2 (H-177) 

prior to the scheduled date of the hearing . . . . 

The board shall also comply, as appropriate, with 

the requirements of , . . Article 6252-13, Vernon’s 

Texas Civil Statutes. . . . ” 

Subsection 3.10 (f) of the-Act specifically authorizes the Board to 

prescribe “sampling methods and procedures. ” 

One of the areas of activity of the Board in which it is authorized to 

make rules and regulations is the “measurement and monitoring of the 

emissions of air contaminants from any source. . . .‘I (§ 3.06) 

Pursuant to its statutory authority, the Board has adopted Regulation 

III entitled “Control of Air Pollution from Sulfur Compounds. ” Contained 

in this regulation are limitations on the amount of hydrogen sulfide which 

may be emitted into the atmosphere, with the provision that determination 

of the concentration is to be in accordance with the detailed procedures in 

Appendix B. Paragraph IIIA provides that hydrogen sulfide emission levels 

are to be measured at or beyond the “property line. ” Rule 1.28 of the General Rules of the Board is: 

“Property. All land under common control or 

ownership on which any source or combination of sources 

is located, coupled with all improvements on such land, 

and all fixed or movable objects on such land. . . . ” 

Your letter states: 

“It has been the practice of staff investigators 

to conduct property line sampling at the fenceline 

surrounding individual ‘tank batteries, ’ feeling that 

this is &e land actually under control of the particular 

oil company. ‘I 

In our opinion The Texas CleanAir Act represents a reasonable exercise 

of the State% police power ‘designed to protect the public 

health. and welfare. Williams v. .Sta’te, 176 S. W., Zd, 177 

p. 809 
The Honorable Charles R. Bard&. page 3 (H-177) 

Tex. Crim. 1943); State v. City of Austin, 331 S. W. 2d 737 (Tex. 1960); 

12 Tex. Jur. 2d, Constitutional Law, $70, p. 415, et seq. and cases’ cited. 

We are also of the opinion that, in the Texas Clean Air Act, the 

Legislature has prescribed sufficient standards to guide the Air Control 

Board in its proceedings and that delegation to the Board of the:power to 

make rules and regulations is not unconstitutional. Williams v. State, 

supra; Housing Authority of City of Dallas v. Higginbotham, 143 S. W. 2d 

79 (Tex. 1940); Southwestern Savings & Loan Association of Houston v. 

Falkner, 331 S. W. 2d 917 (Tex. 1960); 12 Tex. Jur. 2d, Constitutional 

Law,§ $ 62, 65. 

The precise question you have asked us calls for a factual determination which this office cannot make. That determination must be 

made by your staff, based upon their particular expertise and their 

familiarity with the individual areas in question. 

SUMMARY 

The enactment of the Texas Clean Air Act (Article 

4477-5. V. T. C. S. ) and the authorization to the Air 

Control Board to adopt rules and regulations for the 

measurement of emissions of contaminants are constitutional. Factual questions arising under those 

rules and regulations must be resolved,in the first 

instance, by the Board, and ultimately, by the courts. 

Very truly yours, 

cl JOHN L. HILL 

Attorney General of Texas 

p. 810 
The Honorable Charles R. Barden, page 4 (H-177) 

APPROVEfI: 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 811